Public Bill Committee

[John Bercow in the Chair]

Clause 26

Post-charge questioning: meaning of “terrorism offence”

Tony McNulty: I beg to move amendment No. 135, page 18, line 38, leave out from ‘things)’ to end of line 39.

John Bercow: With this it will be convenient to discuss Government amendments Nos. 142 and 137

Tony McNulty: Welcome back to our deliberations, Mr. Bercow. The start of my little speech states that we have grouped these amendments together because they relate to the treatment of a single offence. That is not meant to be a discourtesy to the House: we are happy that the House has grouped these amendments together, with advice or otherwise. Nevertheless, they relate to the treatment of a single offence under section 113 of the Anti-Terrorism, Crime and Security Act 2001, as it appears in the various lists of offences in the Bill. That section makes it an offence to use noxious substances or things to cause serious violence or endanger human life or public safety, to influence or intimidate the Government or the public. That is an offence where the conduct takes place in the United Kingdom but also, by virtue of section 113A and subject to some conditions, overseas.
Amendment No. 135 makes post-charge questioning for the section 113 offence possible, irrespective of whether the conduct relating to the offence took place in the UK or overseas. Under the previous version of the clause—that originally tabled by the Government—a person charged with an offence under section 113 could be questioned about that offence post-charge if the criminal conduct took place overseas, but not if the offence was committed in the UK. That clearly is not a condition that we would want to prevail. Under the amendment, post-charge questioning will be available when the conduct constituting this offence took place in the UK as well as abroad.
Similarly, in relation to the list of offences triggering the notification requirements in clause 39, under amendment No. 142 the notification requirements will attach following a conviction and appropriate sentence for the section 113 offence, whether it was committed overseas or in the UK. Finally, Government amendment No. 137 removes the reference to section 113 of the 2001 Act from schedule 2 to the Bill. That schedule lists the offences for which the court in England and Wales or Scotland must consider whether there is a terrorist connection triggering aggravated sentencing and the notification requirements, which is germane to the next set of amendments.
The section 113 offence is being removed from this clause because, by virtue of amendment No. 142, the notification requirements will automatically apply following a conviction for the offence, so no determination of the terrorist connection is needed. Furthermore, as the section 113 offence is a terrorism offence, it will already be subject to a sentence which recognises that fact, and thus will not need to be considered for an aggravated sentence. In effect, amendment No. 137 is a consequence of the other Government amendments. That is eminently straightforward, and as clear as anything, and I commend the amendments to the Committee.

Dominic Grieve: The amendments do not present huge difficulties. While we are about it, perhaps the Minister would like to consider, and if necessary write to tell me, what a noxious thing as opposed to a noxious substance is. It would be useful. The very first Bill I ever considered in Committee was the Public Processions (Northern Ireland) Bill and it contained a prohibition on playing a musical or other instrument. We had a very interesting discussion about what another instrument might be, without engaging in prurient speculation. The wording was deleted from the Bill—we were left with musical instruments and not other instruments—which was the first time that I ever succeeded in getting anything deleted. I should therefore be grateful if the Minister could tell me what a noxious thing is and how it differs from a noxious substance.

Tony McNulty: I can assure the hon. and learned Gentleman that if it transpires that it is as irrelevant as the item in that Northern Ireland Bill I shall happily—I am in the mood, as the Committee has already seen this morning—accept an amendment from the Opposition deleting the phrase “noxious thing”. The full extent of what it adds to our knowledge and to the 2001 Act may well be utterly redundant, but I suspect that that is not the case. I cannot off the top of my head think of a noxious thing that is other than a noxious substance. But these little tests are sent to try us. If I do get inspiration—if it is afforded during our deliberations—I will, of course, let the Committee know. Otherwise, I shall welcome with open arms the hon. and learned Gentleman’s amendment. For now, however, let us leave “noxious thing” in the 2001 Act, and the references to “noxious thing” in the Bill. I shall scurry away, do my homework and inform the Committee in due course whether there are noxious things that are other than noxious substances.

David Heath: I have a suggestion: a pathogen would not be a noxious substance.

Tony McNulty: Funnily enough, having recently dealt with a couple of statutory instruments on pathogens, I am pretty sure that a pathogen is not a substance, in law at least. I am therefore with the hon. Member for Somerton and Frome, but if any Committee member can correct me, I shall duly give way to them.
As I said earlier—the hon. Member for Newark was absent but he would have been delighted had he been here—given that we do not want undue specificity, the assumption is that there are things that are noxious that are not substances. I fear that I shall not go down the Lambeg drum route that I am provoked into, but if all these things are covered by “substance”, then I shall do the Committee’s bidding. However, I think that the pathogenic hon. Member for Somerton and Frome is entirely right, and that there are things that are not substances but are noxious.

Patrick Mercer: I wonder whether the Minister thinks that this is a canard.

Tony McNulty: I am not sure whether a canard is substantial or is simply a thing, but I did mention canard earlier, when I said that the hon. Gentleman and I have long experience of considering Bills. I am sure that he has his bingo card, and has duly ticked off “canard”. Had he been here this morning—I am sure that he had his reasons for not being—he would have ticked off “undue specificity”. I have another little list, and I am sure that towards the end of our deliberations he will be able to shout “Bingo!” and wake the rest of the Committee up.
On a serious note, if “noxious thing” adds to the coverage of that part of the 2001 Act, as I think it does, we should let it lie. However, I shall consider the import of what the hon. and learned Member for Beaconsfield suggests, and if the term does not add anything, I shall come scurrying back to the Committee or the House with a suitable amendment to expunge the irrelevancy from our legislation.

Amendment agreed to.

David Heath: I beg to move amendment No. 26, page 19, line 11, at end insert—
(e) the common law offences of murder, manslaughter, culpable homicide, kidnapping or abduction, in relation to an offence listed in subsection (1) above.’.
The amendment relates to the specificity of clause 26, which lists an awful lot of offences that have the meaning of a terrorism offence for the purposes of certain sections of the Bill. However, the list does not accord with the list of offences in schedule 2 for which a terrorist connection is to be considered. I understand that the lists are for different purposes, but this is a probing amendment to discover from the Minister why the common law offences listed in my amendment are omitted from the clause. Those offences can clearly be related to terrorist offences, and we would expect post-charge questioning to be pursued for such offences if they were relevant to the facts of a case. I am sure that there is a good reason for that, but I should like to know what it is.

Tony McNulty: The hon. Member for Somerton and Frome is entirely right that the clause does not include the definitive list from the previous two Acts, but that is not for the reason suggested. Most of the common law offences in his amendment are already covered, because the court will dictate that they are terrorism-related, and that is enough for them not to be on the list. Any common law offence that the court duly decides is terrorism-related will be included, so we do not need the list that he proposes.
The hon. Gentleman is astute, and will know that there are some minor offences in those previous Acts that we do not regard as appropriate for post-charge questioning, such as refusal to leave a cordoned area on the instruction of a police officer. The amendment is unnecessary, because the Bill already allows for questions about other offences in England, Wales and Scotland when a court confirms that they are connected to terrorism.

David Heath: I entirely understand that point, but my difficulty is that the court will not be able to provide such confirmation until the person is put before it. Without judicial supervision of post-charge questioning, the person will not be before a court when the determination is made about whether post-charge questioning is legal.

Tony McNulty: Once charged, the individual is effectively under the protection of the court, so those charges, duly laid, will reflect the offence, and at that stage, if it is murder and connected with terrorism, there is provision for it to be made clear on the charge sheet. In England and Wales, if a judge made an order under section 29 of the Criminal Procedure and Investigations Act 1996 for a preparatory hearing to be held on the basis that the offence was connected to terrorism, post-charge questioning would be possible. Those hearings automatically take place when an offence carries a maximum sentence of more than 10 years, which is certainly true of murder. I am assured that under the 1996 Act and provisions in the other Acts, common law offences, when linked to terrorism, can and should be duly considered under clause 26 of the Bill without there being a broad and extensive list of any potential common law offence that might or might not be attached to, or have, a terrorism dimension.
We are right to get rid of the minor offences in the 2006 Acts, simply because to put them in the context of post-charge questioning would not elicit much further information. I take the hon. Gentleman’s point about judicial scrutiny, but we have let it lie and will return to it at a subsequent date. I hope that that satisfies him and that he can withdraw his amendment.

David Heath: Up to a point. I am grateful to the Minister for his response. As he said, we have agreed to let lie for the moment the question of judicial supervision, which made it all the more surprising that he appeared to suggest that judicial supervision was the answer to my conundrum about how we deal with post-charge questioning when the court has not yet considered whether the offence has a terrorist connection.

Tony McNulty: I was referring to no such thing. That, in the words of the hon. Member for Newark, is an utter canard. I did not give way on judicial oversight at all in terms of post-charge questioning. We will come back to the matter, as I have said, and I look forward to it.

David Heath: I thought that I used exactly the expression that the Minister used: that we had agreed to let the matter lie for the moment. That is why it came as some surprise when he gave it as his explanation—it would appear to me—as to how to define a common law offence with a terrorist connection: that it would be determined by the court when the person involved had not been put before the court at that stage, unless we were in the circumstances of judicial supervision of post-charge questioning. I hope that we will return to that matter and that he will accept that it has a place in the debate.
The list of common law offences is not long, and it would not be the end of the world if that short list, which is the same as the list that uses up only five lines in schedule 2, were in the clause. I accept what the Minister says about the need to limit the provision in order to avoid the minor offences that might otherwise be caught in the schedule. That is common ground. There is no difference in what we expect to happen; my concern is simply that not considering the matter at this stage leaves a loophole—yet again—that we might need to fill. I ask him to consider that last point again. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26, as amended, ordered to stand part of the Bill.

John Bercow: We come now to clause 27.

Douglas Hogg: On a point of order, Mr. Bercow, I noticed that you put the clause stand part question quite rapidly. It is just possible that I shall want to get to my feet when you put the stand part question on clause 27. Could you please put the question more slowly, so that I can get to my feet before the issue is closed?

John Bercow: I had not taken account of the right hon. and learned Gentleman’s sensitivities and sensibilities, but I shall do my best. I am certainly proceeding in accordance with custom and precedent.

Douglas Hogg: Further to that point of order, Mr. Bercow, it was really just a polite way of saying that I hope that you might allow a short stand part debate on clause 27.

John Bercow: I am very much minded to do so.

Clause 27

Jurisdiction to try offences committed in the UK

Dominic Grieve: I beg to move amendment No. 166, page 20, line 17, leave out subsection (4).

John Bercow: With this it will be convenient to discuss the following: Amendment No. 168, page 20, line 18, leave out subsection (5).
Government amendment No. 136
Amendment No. 167, page 20, line 19, leave out subsection (6).
Amendment No. 126, page 20, line 19, after ‘offence’, insert ‘with terrorism connections’.

Dominic Grieve: These are probing amendments, so my right hon. and learned Friend might find that they facilitate a more general debate on the clause. The Committee will recollect that, in the course of our preliminary deliberations, we received evidence from the Lord Advocate, who provided a great deal of reassurance. She said that there was little anxiety among the Scottish Government about the clause, which was designed to facilitate trials taking place with maximum flexibility in relation to the United Kingdom. In her judgment, it was not intended to be used, and would not be used, to try to remove cases from Scotland or, for that matter, vice versa.
Nevertheless, we cannot simply allow clause 27 to pass without taking a closer look. When I look at the clause, two issues spring to mind, on which I would like a response from the Government. First, the clause lists a number of offences under the Terrorism Act 2000 that will be caught by the provisions, which will enable a trial to take place anywhere in the United Kingdom. For the most part, they did not cause a great deal of trouble, although I must confess that I was struck by the reference to
“section 51 (parking a vehicle in contravention of an authorisation or restriction)”.
I accept that that might have an intimate terrorist connection, but I am not sure that it is so serious—unless accompanied by other factors—as to be an area in which I would wish to depart from the ordinary rules on where a matter is tried. I flag that up with the Minister, and it would be helpful if he could provide an explanation, because the Government have been quite careful in selecting the provisions covered by the clause.
Secondly, it is also provided that the Secretary of State may by order amend the subsections to add to the list anything that he likes. I accept that that must be done through the affirmative procedure, but, as the Minister knows, I have a rather old-fashioned dislike of it partly because individual offences tend not to be put to the House to be added to a list. The chances are that we will get six or seven, one of which we might dislike, while having no problem with the remainder. In such circumstances, we can do nothing except vote against or in favour. Given that I would have expected the Government to have covered in the clause all existing terrorism legislation that they felt needed to be subject to this unusual provision, in reality nothing else should need to be added, except under subsequent legislation, which could be done without any problem by virtue of tabling the suitable consequential amendments.
I find subsection (6) somewhat surprising, because it purports to have a retrospective effect, and that might bother me more than any other part of the clause. I do not want to make too big a fuss about it, and on one level I can see that provisions already exist for offences to be moved from Scotland to England for trial under certain set circumstances, particularly in cases of conspiracy, for example. Nevertheless, we have two distinct legal systems and it could be argued properly that individuals are entitled to the protection of the legal systems under which they live and certainly to certainty under the law. That is different from the accused suddenly being told that even though the law did not operate at the time the offence was committed, they will be tried in a jurisdiction other than that in which the alleged offence was committed. Although I derived a great deal of reassurance from the Lord Advocate’s evidence, which removed much of my anxiety over the clause, it still seems to me that some issues need to be teased out.

Douglas Hogg: I have only two observations. First, may I say to my hon. and learned Friend that although I recognise and share his dislike for the process of amending statutes by order, I very much prefer the affirmative to the negative procedure? He is entirely right that an order made under either is unamendable, and that is the great vice of using the procedure.
My second observation reinforced the point that my hon. and learned Friend made with regard to subsection (6). There is actually quite a significant point of principle here. He has mentioned retrospection, and of course it is entirely right that persons should not be subject to different sentences dependent on a law being applied retrospectively. That also applies to jurisdiction, because it is rather hard to say that a person can be tried in a jurisdiction that they could not be tried in unless the law was made retrospective. That will probably not happen in reality, because those classes of case will disappear with the passage of time, but there is an issue of principle here, and I have a strong degree of sympathy with my hon. and learned Friend’s point

Tony McNulty: I am grateful to the hon. and learned Member for Beaconsfield for recognising that the Lord Advocate’s evidence was extremely useful for understanding these clauses. She gave a formidable and informative performance, which was one of the few saving graces of using the evidence sessions as a prelude to our deliberations, as I thought that she was very good. She said not only that the principal source of the amendment lies in concerns and anxieties north of the border, but that it was absolutely clear
“that the real priority here is the public interest, and terrorism in that context demands that we act closely together to ensure both the public interest and fairness for the accused.”——[Official Report, Counter-Terrorism Public Bill Committee, 22 April 2008; c. 91, Q249.]
Clause 27 gives UK-wide jurisdiction for specific terrorism offences so that they can be tried in any part of the UK, as the Lord Advocate clearly stated, irrespective of which jurisdiction they were committed in. Hon. Members will know that London-Glasgow last summer was the source of some of the concerns raised about the clause. The clause applies to offences listed in subsections (2) and (3), which are offences under the terrorism legislation and the ancillary offences associated with those, such as conspiracy and incitement. The clause covers more minor terrorist offences, so that in some cases a person can be tried together with a linked defendant in another jurisdiction who might be charged with a more serious offence. When considering the core element of dual jurisdiction and where to try in the first place, those minor offences might bring in other defendants from another jurisdiction to the major offence and the major defendant in the principal jurisdiction. That is why some of the more ancillary and lesser charges are included.
It will be possible to prosecute terrorism cases in any part of the United Kingdom, irrespective of where they were committed. Rightly, however, under the principles of common law, a substantial measure of the criminal activity must have taken place in the UK for a court to take jurisdiction over an offence. The common law rule has been established for sensible reasons, and in the vast majority of cases it results in the court that is best placed to deal with the offence having jurisdiction. However, when cross-border situations arise, the rule might result in linked offences that happen in two different parts of the UK having to be tried in separate trials in different parts of the UK with an ultimately detrimental effect on bringing individuals to justice. That would be inefficient in that it would involve duplication of witnesses and evidence, a waste of resources and almost certainly less effectiveness than if the cases could be joined and tried together in the one jurisdiction.
The provision in the clause will be extremely helpful when, for example, in a single investigation there are linked defendants, one in Wales and one in Scotland, both of whom are found to be in possession of terrorist articles, which is an offence under section 57 of the 2000 Act. Each defendant could be tried only under separate jurisdictions as the common law rule would prevent a joint trial, no acts of the Welsh defendant having taken place in Scotland or vice versa. The provision in clause 27 will allow such cases to be tried by the same court.

Douglas Hogg: I may be expressing an anxiety that is ill founded, but the right hon. Gentleman knows that in Northern Ireland there are Diplock courts, or trial by a single judge. Is it possible under the clause for people who are normally resident in Scotland or England and Wales, where they would normally be subject to trial by jury, to be transferred to Northern Ireland and face trial by a single judge for a terrorist-related offence?

Tony McNulty: That is an entirely fair point, but not so, as I understand it—if someone to the left of me falls off their chair I will have misinformed the right hon. and learned Gentleman. The provision covers principally England and Wales, and Scotland, but if I am wrong, I will happily stand corrected.
There are already examples of legislation that enables prosecutions to take place in any part of the UK. The Criminal Procedure (Scotland) Act 1995 and the Customs and Excise Management Act 1979 include such provisions. Amendments Nos. 126 and 136 would clarify the scope of clause 27 by limiting the purpose of UK-wide jurisdiction to dealing with terrorism.
Government amendment No. 136 makes it explicit that an offence can be added to the list only if the Secretary of State believes that it is necessary for the purpose of dealing with terrorism. The order-making power could not be used to create UK-wide jurisdiction for offences that are not related to terrorism. Clearly—this is almost a rerun of our previous deliberations—there can be and will be ancillary and precursor activities and offences that seem not to have anything to do with terrorism, but do.

Elfyn Llwyd: I might be wrong, but the United Kingdom includes Northern Ireland.

Tony McNulty: Yes, of course it does.

Elfyn Llwyd: In which case, if part of a terrorism offence occurred in Wales and the bulk of it occurred in Northern Ireland, surely the right hon. and learned Gentleman’s scenario is reasonable and could happen under the Bill.

Tony McNulty: That may well be the case in terms of the jurisdictional point. My concern and hesitation was on the point about the juryless element and Diplock, and where we are in dismantling that paraphernalia as well as the security and terrorism paraphernalia and legislation in Northern Ireland consequent on the peace process. The Committee will know that as part of the peace process and embedding devolutions in Northern Ireland, we are seeking to unpick all of the emergency legislation that prevailed regarding terrorism and security, including using the Bill to do so. We are also, as we already have in at least one regard, taking measures that were relevant only to Northern Ireland and making them UK-wide provisions because they are useful for the wider threat that we now face. If I have confused people, I apologise, but it was on the point about juryless trials that I was unclear; the broader issue of Northern Ireland’s jurisdiction being within the United Kingdom I happily accept as a matter of fact.

Douglas Hogg: The right hon. Gentleman will remember that right at the end of last year, there was the case of Hoey before Mr. Justice Weir, which concerned the Enniskillen bombing. That makes the point that the single judge is still operating without a jury in Northern Ireland. Unless something has happened in the last three or four months of which I am unaware, there are still judge alone trials.

Tony McNulty: That is the point that I am not clear on. I am not sure whether we have already started to disestablish, or whatever the phrase should be, that particular paraphernalia. It might be that precisely because the case involved Enniskillen, an horrendous atrocity of so long ago, it still pertained to the old system, and a new system has come in. The jurisdictional point is well made, but if the push from hon. Members is that including Northern Ireland should not include the juryless element—whether or not a substantial part of the offence took place in Northern Ireland—I am happy to take that back, and I think that I would absolutely agree.

Dominic Grieve: I would be grateful if the Minister would do so because an amendment needs to be inserted to say that the movement, this UK-wide jurisdiction, shall not be used for the purposes of depriving a person of the benefit of trial by jury. That would solve the problem. Such an amendment need not exclude Northern Ireland specifically because indeed, some Northern Ireland cases could be transferred here, for example, but it is a very important issue.

Tony McNulty: I would agree. Doubtless, if I do not say so someone else will: given the concerns about the potential retrospective nature of part 6 and the substantial offences and activities that have been committed in Northern Ireland, that point becomes all the more important. It is certainly not the Government’s intention, by sleight of hand or otherwise, that any case under England and Wales or Scottish jurisdiction that had a remote Northern Ireland connection should be thrown over the Irish sea to be dealt with by Diplock courts. I will get clarification on that and hopefully write to the Committee before our proceedings end.

David Heath: On a different and minor point, which I hope the Minister will not feel is completely irrelevant, I wonder whether the Government have had any discussions with the Governments of the Crown territories within the British Isles regarding reciprocal arrangements for jurisdiction in the Isle of Man and the Channel Islands. It seems entirely possible that terrorism could be aimed at UK interests in the Channel Islands, presenting a difficulty with jurisdiction that is not entirely covered by the clause dealing with offences committed outside the UK.

Tony McNulty: The hon. Gentleman is entirely right and his point is not completely irrelevant. It is a perfectly fair point and one that I will explore, but I would think that in most instances, without offending anybody in the Isle of Man or anywhere else, in a dispute over jurisdiction between a Crown territory and any of the UK jurisdictions, the dominant UK jurisdiction would prevail for legal, practical and other reasons. I know that there has been discussion, but I am not sure whether we have reciprocity to underpin what we are trying to do here in cross-jurisdictional bases.
The hon. Gentleman’s point is fair and moot, albeit minor; I would not go so far as to call it irrelevant, but if a significant element of a terrorist case in Northern Ireland, Scotland or England and Wales was under Isle of Man jurisdiction, which is perfectly feasible, I find it difficult to believe that such a case would not be taken to trial by the senior jurisdiction, especially if it was a serious case. I say that without offending anyone in the Crown territories. However that is a fair point and I will explore it and get back to the Committee.
Amendment No. 126 and Government amendment No. 136 seek to do the same thing, but on balance, in limiting it to dealing with terrorism, the Government amendment does that better. For that reason, and with all due humility, I cannot accept the amendment tabled by the hon. and learned Gentleman.
Amendments Nos. 166 and 168 would remove the ability of the Secretary of State to amend the list of offences for which there will be UK-wide jurisdiction. Unless the Committee tells me otherwise, I think that we have covered that pretty well.
I will take away the points that were made entirely fairly about the retrospective nature of subsection (6). I think that the right hon. and learned Member for Sleaford and North Hykeham—not for Sleakeham—is entirely right when he suggests that such cases will be very rare and that there may be no need for the provision at all. It is put in there to cover all eventualities, given the serious nature of these offences. I appreciate the point of principle involved and the Government’s intention was not to open up retrospectivity as a more general point. If hon. Members have alighted upon a more sinister import, I will come back to them in all due humility. However, I do not think that there is. I think that incorporating that is a belt and braces element in trying to create cross-jurisdictional clarity.
I ask the hon. and learned Member to withdraw the amendment, and I would like Government amendment No. 136 to prevail over amendment No. 126.

Dominic Grieve: I am grateful that the Minister has taken on board the anxiety that has been expressed that we should not facilitate trials without juries and for the assurance that he will look at that. In conclusion, I slightly reserve my position on subsection (6). I continue to have anxiety about the retrospectivity of these provisions. It may, as my right hon. and learned Friend the Member for Sleaford and North Hykeham rightly said, prove to be entirely academic because it is hoped that such a case will not arise. However, I think that people are entitled to the benefit of the jurisdiction in which they commit their offences. If Parliament is going to remove that, to do so retrospectively is a slightly dubious procedure. I shall reflect on that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 136, in page 20, line 18, at end insert—
‘( ) The power conferred by subsection (4) may be exercised so as to add offences to subsection (2) or (3) only if it appears to the Secretary of State necessary to do so for the purpose of dealing with terrorism.’.—[Mr. McNulty.]

David Heath: I beg to move amendment No. 50, in page 20, line 20, at end add—
‘(7) Where this section applies to an offence committed in Scotland, proceedings may only be taken in another part of the United Kingdom following consultation with, and with the consent of, the Lord Advocate.’.
I agree with the view expressed earlier in Committee that the evidence of the Lord Advocate was extremely useful. I think that that was one of the most useful parts of the evidence taking sessions that we had.
 Mr. Hogg rose—

David Heath: I freely admit that his evidence shot a fox as far as I was concerned. I was clear that this was the big, bad Home Office doing awful things to the Scottish jurisdiction and it quite clearly was not.

John Bercow: Order. I say very gently to the right hon. and learned Member for Sleaford and North Hykeham that in seeking to intervene, one asks the person on his or her feet whether they wish to give way. It is not usual practice for a Member simply to stand and by the fact of asserting his or her presence to seek to intervene.

Douglas Hogg: You misunderstand me, Mr. Bercow. I was seeking to intervene, but only at a time convenient to the hon. Member for Somerton and Frome. I did not want to interrupt his flow, merely to indicate that at his convenience I would be grateful if he did give way.

John Bercow: Order. Perhaps I can make the position clear once and for all. There is a method of intervening and that method applies to every single Member of the House. With the greatest of respect, I do not need the right hon. and learned Gentleman to explain to me that I have somehow misunderstood him. There is a way of going about these things. I am simply gently saying to him that he should do it in the way that everybody else does.

David Heath: My flow is eminently interruptible and I am delighted to give way to the right hon. and learned Member for Sleaford and North Hykeham.

Douglas Hogg: My desire was simply not to interrupt the hon. Gentleman in mid-flow. That was my very modest reason for getting up as I did. Would he agree with this proposition? It is certainly the case that the Lord Advocate’s evidence was extremely valuable. One of the problems that affects Bills of this kind where we are dealing with Northern Ireland and Scotland, is that often we do not have the opinion of the relevant authorities within each part of the United Kingdom. It would be a jolly good thing if as a general rule we could have advice, for example, from the law enforcement agencies of Northern Ireland in respect of that part of the Bill that touches on Northern Ireland when there are no Unionist or Northern Ireland representatives.

David Heath: I am most grateful to the right hon. and learned Gentleman for that intervention.

Tony McNulty: As far as I am aware, because I take the hon. Gentleman’s point, through the usual channels and in the usual fashion the Conservative party was asked if one of their Members would stand down in lieu of a Democratic Unionist party representative. As we see, that request was not greeted with any equanimity.

David Heath: I do not want to get into discussions between the usual channels. I simply want to record my gratitude to the Lord Advocate. I think it was my request initially for her to attend and give evidence. I thought that she gave evidence extremely well. As I said, she put to rest my concern that this was being done unilaterally to the Scottish jurisdiction rather than at its instigation, which was clearly the case. That was useful.
Taking forward the point made by the right hon. and learned Gentleman, very often I am concerned when we are dealing with criminal justice matters in this House affecting Scotland that we do not have the benefit of colleagues from Scotland to give their advice. I appreciate that we have one Member from a Scottish constituency on the Committee, but he is the only one. There was a time when it was normal to have a Scottish Office Minister present on a Bill like this to deal with the issues relating to Scotland. I do not criticise the Government for this because since devolution many of these matters are dealt with by the Scottish Executive. I understand that entirely, but it means that we have to take particular care when we are dealing with the Scottish or the Northern Irish jurisdictions to make sure that we understand what the issues are and get them right.
Although my mind was put at rest as far as the general case that there was agreement across both sides of the border that what is set out in this clause was an advantage, my one remaining anxiety is about what might happen if there were a disagreement. The Lord Advocate was very generous in her comments about her relationship with the prosecution authorities in England and Wales and said that she got on extremely well with the Attorney-General, the Solicitor-General and the Director of Public Prosecutions and that they had no reason to find themselves at odds. Nevertheless, it is conceivable that this Lord Advocate, or a future Lord Advocate might have a difference of opinion with this Attorney-General or a future Attorney-General as to whether these powers should be invoked in a specific case.
I respect the separate jurisdiction in Scotland, which has managed to maintain its differential over the long years of the Union of the Crowns and the Union of Parliaments. Given the specific differences in the system that exist, which I would defend under any circumstances, just as I defend our right to have our common law system instead of any form of merger with any European or continental model or jurisdiction, we should have respect for the Scottish jurisdiction and be able to say that this should be done with the consent of the Lord Advocate. In any case, I do not think that that would not be forthcoming. Simply as a courtesy—a bow of the head to the Scottish jurisdiction—it is right that the Lord Advocate should be consulted and that she should give agreement.
That view is strongly held by lawyers north of the border, as reflected in the advice from the Law Society of Scotland, for instance. I cannot remember whether I had a letter from the Faculty of Advocates on the subject, but I suspect that that would be its view as well. It seems a minor courtesy to write such a requirement into the Bill, and I hope that the Minister will accept the amendment. It would not in any way reduce the effectiveness of the Bill. It would simply provide a safeguard so that if there were a dispute at some stage in the future, at least there would be a way of resolving it or recognising that there was a difference, rather than England and Wales simply bullying their way forward at the expense of the Scottish jurisdiction.

Dominic Grieve: I am not unsympathetic to what the hon. Member for Somerton and Frome has done in amendment No. 50, and if this debate had taken place without the benefit of the Lord Advocate’s evidence, I would have been minded to support him if he had put his amendment to a vote. I also accept that the amendment is relatively innocuous.
However, what struck me so forcefully in the Lord Advocate’s evidence to the Committee was the extent to which she was entirely comfortable with the conventions that operate currently. As a Conservative, I am a great believer in conventions, which do not have to be written down. When I saw the extent of her sense of comfort—she is, after all, the Lord Advocate advising a Government who now have a nationalist viewpoint—I began to conclude that I was worrying about nothing.
If the working relationship that clearly exists between her office and that of the DPP and the Attorney-General is as good as it appears to be—we heard nothing to suggest otherwise—it seems that this matter is capable of being resolved through those informal relationships, which are, of course, the foundation of our constitution.
Therefore, on balance, although I fully understand why the hon. Gentleman tabled the amendment, I think that if the Lord Advocate does not want it—she is the person best placed to decide whether it is needed—it probably is not needed.

Douglas Hogg: May I use this debate to raise a question with the Minister as to what happens if there is a disagreement between law enforcement agencies in different parts of the United Kingdom? Let me postulate as an example a person held in Northern Ireland whom it is desired should be tried in England—the CPS or the DPP wants to try them in England—but whom the law enforcement agency in Northern Ireland does not want to transfer. The same thing could apply to Scotland or Northern Ireland. Is there any procedure in place or any laws that deal with that question? How does one resolve such a disagreement when it arises, if it arises?

Tony McNulty: I do not think that I can usefully add much to what the hon. and learned Member for Beaconsfield said. The current Lord Advocate draws comfort from existing arrangements not because she gets on famously with our current Attorney-General and Solicitor-General, although they have a good relationship; the comfort comes as much from the experience and conventions that the hon. and learned Gentleman referred to and the fact that, as both chief prosecutors act in the public interest, sufficient protection is already provided. I am with the hon. and learned Gentleman: the convention works not simply because a couple of pals get on together, but because it has worked historically. She also made it clear that, notwithstanding terrorism, cross-jurisdictional issues are not new—they had occurred and been dealt with under common law. She quoted, I believe, an example of credit card fraud with roots in Scotland and its link to a drugs ring in Liverpool. We are clear, not least because of the heightened regard that both legal officers, whoever they are, would afford to public interest and protection, that things work very well as they are. On the principle—it is probably not a Conservative principle—that if it ain’t broke, don’t fix it, we are in a reasonable position notwithstanding what clause 27 will add to the relationship.

Douglas Hogg: I rather feared that the Minister was going to conclude his remarks without responding to my perfectly genuine query. What happens if there is a disagreement, as between respective law enforcement agencies? Is there a procedure and are there laws for the resolution of that disagreement?

Tony McNulty: I do not think that there is a formal legal resolution procedure other than broad protocols rooted in the sort of conventions and experiences to which the hon. and learned Member for Beaconsfield referred. That is not a namby-pamby answer. Rooted in experience thus far, they will prevail. At its most mechanistic, one could apportion the seriousness of what happened in what jurisdiction and weigh accordingly which was the dominant. I do not think that senior law officers in the UK act in that fashion. The protocols and the experience thus far tell us that such problems will be overcome. I accept that it is a perfectly genuine inquiry, but I do not think that a procedure should be locked in—not least for the same reasons that I do not want the amendment—some mechanistic, formal and formulaic statutory requirement, given the flexibility and complexities of such cases which, we should be clear, will be relatively few and far between, as the right hon. and learned Gentleman suggested.

Russell Brown: I live close to the border of England and Scotland and I can assure the Minister that, on the information that I have, there is a close working relationship on both sides, and not only in the border locality. It goes far wider: I am aware of many drugs-related activities over which there has been excellent co-operation to ensure that those who are out there contravening laws in this country are brought to book. The law enforcement agencies appear to work well together; the judiciary may be something different.

Tony McNulty: I am grateful to my hon. Friend. When the Lord Advocate was before us, the hon. Member for Somerton and Frome teased out of her the fact that clause 27 emanated from the Scottish Law Officers, and shot his own fox in the process. As the hon. and learned Member for Beaconsfield said, the Law Officers are entirely comfortable with the measure, not because of a personal relationship, but because of the institutional relationship, to which my hon. Friend the Member for Dumfries and Galloway referred, and the relationship between the two offices over time. Therefore, the Liberal Democrats’ amendment—I do not say this terribly frequently—is entirely irrelevant. I would ask the hon. Member for Somerton and Frome—I would ask his hon. Friend the Member for Carshalton and Wallington too, but he is not here—to gracefully withdraw so that we can move on.

David Heath: If I understand the Minister, the reasons why we should not have a provision to require consultation and consent from the Lord Advocate are that consultation always takes place with the Lord Advocate and she gives her consent, and that the amendment would therefore place an onerous duty on both officials to secure such consultation and consent, irrespective of the fact that that already happens. There is no prescription in the amendment for a checklist or questionnaire or anything else; it is simply a statement of what the Minister has assured me is already the case.

Dominic Grieve: I have no wish to defend the Minister, but that is not quite what he said. It was not that the Lord Advocate always gave her consent. It was that she never had any difficulty reaching an agreement with her counterparts in England. In some cases, it could even work the other way, or it could be that consent is not given. I was very struck by the fact that she indicated that it had never been a problem.

David Heath: Which, I think, repeats my position. The fact that it has never been a problem suggests that either consent is given, in which case it happens, or consent is not given, in which case it does not happen. That means that my amendment would make no difference to the arrangements unless there was a difference of opinion, which none of us foresee in the near future on the evidence of the Lord Advocate—certainly with the present incumbents and with the present protocols in place. We must assume that the good relationships will last, that the incumbent will stay in place with the new administration in Scotland, that her successors will take exactly the same view and will be as co-operative as she clearly is, and that for the lifetime of this statute, there will not be a dispute. Therefore, there is no need for any resolution to provide the consent. That is the argument that I have heard against my eminently reasonable and modest suggestion. [Interruption.] The Minister tells me that that is not the argument.

Tony McNulty: As I made it very clear—I do not wish to prolong the point—the Lord Advocate took comfort in the prevailing position, not simply because of her relationship with the individual who happened to hold the post of Attorney-General in England and Wales, but because of the protocols that will be in place and because of the experience and conventions that the hon. and learned Member for Beaconsfield referred to earlier and how successfully they had worked to mutual benefit. That is a bit more than saying that she has either been steam-rollered or that consent has always been forthcoming, so there is no harm in adding this amendment. This amendment—I am loth to say that it is vacuous—adds nothing to the prevailing relationship. The prevailing relationship is so strong not because of the Baroness Scotland and Elish Angiolini, but because of the posts that they occupy and the raison d’Ãªtre of those posts as chief legal prosecutors looking after the public interest and public safety. That is where the comfort comes from; all of that and not just the relationship.

David Heath: We have a personal relationship as well as protocols and public interest that allow for consultation and consent, but the provision that requires consultation and consent is otiose.

Dominic Grieve: The other reason why I happen to think that the amendment is unnecessary is because in reality, if there were a conflict, I do not think that there is any way in which the Government at Westminster could require the Scottish Executive and the Scottish legal authorities to surrender an individual across the border for the purpose of trial. Its separate legal system, which is enshrined in the Act of Union and preserved in devolution, would not allow us to do it. Also, if there were a breakdown in the relationship, which has apparently been operating very well for a very long time, nobody could impose their will on the Lord Advocate if she were to say, “I am terribly sorry, but this person is going to be tried in Edinburgh or Glasgow.”

David Heath: I do not like disagreeing with the hon. and learned Gentleman, but if a prisoner were held in Glasgow or Edinburgh, that clearly would be the case. There would be no question of surrendering a prisoner to stand trial in Preston or Derby. However, if the person was held in the English and Welsh jurisdiction and part of the case against that person was that he had committed offences in Scotland, this provision gives a jurisdiction to the English court to hear the cases committed in Scotland under Scots law. That is what this provision says. If, in future, the Lord Advocate felt that it was in the public interest in Scotland for those cases to be heard under Scots law in Scotland, there is nothing she could do about it other than to invoke the protocols that are in place, which would have no statutory basis.

Douglas Hogg: It is at least possible, is it not, that the Lord Advocate might conclude that the interests of justice, that is to say the protection of the defendant, might require that defendant to be tried in Scotland, not least because there is a not proven verdict in Scotland? I can conceive of circumstances in which, trying to safeguard the interests of the defendant, one would say that the defendant had a better chance of a favourable outcome by being tried in Scotland than being tried elsewhere.

David Heath: That is indeed the case. There is the further complication that it is quite clear that post-charge questioning will not happen under a Scottish jurisdiction, whereas it will in England and Wales. That was the clear evidence we were given. I think it is a good thing that it should happen, but there is nevertheless that difference between the systems. There might be a conclusion in the interests of justice on that basis.
I do not wish to prolong this any further. I think we have explored the issue, but I find the position adopted by the Minister—and, it would seem, though I regret it, by the hon. and learned Member for Beaconsfield—to be a flawed position. I think that this is a minor safeguard for circumstances that we cannot foresee, but which could cause considerable difficulty between the two jurisdictions at some stage in the future, unless it is resolved. I may come back to it on Report, but for the moment I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Douglas Hogg: You have been good enough to allow a fairly broad debate on the two groups of amendments, Mr. Bercow, so I can be much more brief than I had planned. The issues here are of some interest and, indeed, of some importance. I can summarise them very briefly because they have been much canvassed in the recent debate.
It would be helpful if the Minister could give a somewhat fuller statement of the circumstances in which it is likely that somebody would be moved from one jurisdiction to another for the purposes of trial. He has, quite fairly, identified instances where there are linked offences, and I can well understand that linked offences would justify an application for transfer.
There are other situations that I would like to explore with him. For example, is it intended to use the transfer provisions for the convenience of witnesses where all or most of the witnesses are in one part of the United Kingdom? Is that a consideration that comes into play? There is also, and differently, the possibility of prejudice. Let us, for example, remember the Enniskillen bombing. I could conceive that defendants might wish to be tried in England or Wales, or indeed Scotland, rather than in Northern Ireland, after an offence of that kind. Is it intended that these provisions shall be used in order to make a transfer where it could be deemed that it would be difficult for a defendant to get a fair trial?
The Minister has, as I understand it, changed his position on the question of Diplock courts. I understand him to say that he accepts that if there is a possibility of a person being tried without a jury as a result of the use of these provisions, steps will be taken, either by statutory language or otherwise, to ensure that nobody is deprived of a jury trial in a terrorist-related matter. I welcome that, and I hope that the Minister will make that position quite plain.
My next point flows from what the hon. Member for Somerton and Frome was saying about the value of the Lord Advocate’s evidence. He is of course entirely right. There may be very good reasons why it is not possible on a Committee of this size to have a fuller representation from the other parts of the United Kingdom. I understand that. It is a big Committee, but it may not be big enough for that purpose. Might I, however, suggest to the Minister, who has greater influence on these matters than do I, that, as a matter of general principle, where one is legislating in a way that affects the separate parts of the United Kingdom, and where, as is inevitably the case, all of us—on this Committee or on a similar Committee—have but limited experience, we invite the law enforcement agencies, for example, to give their opinion, in the first instance in writing, on relevant parts of the Bill, so that we do at least know the preliminary views. It might be proper to summon them to give evidence under Special Standing Committee procedures. But that is perhaps a wider issue. Will the Minister give that some consideration?
Finally, I welcome the Minister’s willingness to move on retrospection. My hon. and learned Friend the Member for Beaconsfield was right about subsection (6), but I have spoken about that already. There is an issue of principle, because people could be subjected to a less favourable trial than they might necessarily get in their country of usual residence. I made this point in an intervention on the hon. Member for Somerton and Frome. I have in mind the not-proven verdict, which of course is a more favourable position in Scotland than elsewhere in the United Kingdom. A Scottish defendant might well think it unfair to be transferred, by reason of retrospective legislation, to another country within the United Kingdom, because they would be deprived of the possibility of securing a not-proven verdict. If that was done retrospectively, there would be an important issue of principle. If he could give thought to that as well, I am sure that the Committee would be grateful.

Tony McNulty: All of those are perfectly reasonable points. I think that I have said very clearly that it is not the intention of clause 27 to get terrorist suspects to Diplock courts in Northern Ireland. If the provisions need tidying up and strengthening to reflect that, notwithstanding what I said about not knowing fully whether we have started to dismantle the Diplock court arrangements in Northern Ireland, I shall come back to the Committee. It is a perfectly fair point.
I think that people are being unduly, but necessarily suspicious about the import and direction of subsection (6) on retrospectivity. I listened to the points, and shall try to provide a further explanation to allay the Committee’s genuine fears. It is not about a jurisdictional lotto—if I may use that phrase—or prosecutors touting around different jurisdictions trying to get the best case from their perspective, rather than that of the defendants. It is about terrorist offences and plots occurring in two jurisdictions. Clause 27 will be used only where a plot involves suspects in different jurisdictions.
A point was made about convenience for witnesses, but I do not think that that would prevail, save for the point that if the dominant elements of a plot require so many witnesses from a particular jurisdiction, it would probably imply that that is where the trial should take place in the first instance. However, there is a notion that a trial could take place in Glasgow, rather than London, simply because most of the witnesses are from Glasgow, even though at the time they were on a coach trip down to London, where the principal or core events took place, which would mean that the jurisdiction would rightly be London. Convenience in that sense is not the import or thrust of the clause.
A point was made about the fairness of being tried in one jurisdiction rather than another—the example of Enniskillen was given. Again, that was a perfectly fair point, but it has nothing to do with clause 27. The important points were those about jurisdiction raised by the Lord Advocate in her evidence. I can provide a very clear and sharp example, although I shall not go into too much detail, because I am not sure whether it is still sub judice—it might still be rattling along somewhere down the line. The example is London-Glasgow—to use the common parlance—by which I mean the events at Glasgow airport. The right hon. and learned Gentleman will know that they started in Haymarket with the two Mercedes-Benz cars filled with assorted paraphernalia, which happily did not go off. That is a clear case involving jurisdictional issues—happily, they were resolved. To be fair, that specific case, unusual though it was, prompted the Scottish and UK legal offices to look at clause 27 as a framework for dealing with such matters in the future. I repeat—I say this and something will happen in the next few weeks, although clearly I hope not—that it is very uncommon for something to be so starkly in two jurisdictions as that particular case was. That case prompted the activity. I think that I have clarified the example that was the precursor to clause 27 in the first place. I understand the points raised, although hopefully they are rather arcane and, although perfectly valid, such concerns will not stand up to further investigation in terms of retrospectivity. However, I will certainly explore the point about juryless trials. Clause 27 is not supposed to result in anyone faced with terrorist offences being put in front of a juryless court.

Question put and agreed to.

Clause 27, as amended, ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.

Clause 29

Sentences for offences with a terrorist connection: England and Wales

Tony McNulty: I beg to move amendment No. 76, in page 20, line 32, after ‘If’ insert
‘having regard to the material before it for the purposes of sentencing’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 27, in page 20, line 33, leave out ‘court’ and insert ‘jury’.
No. 128, in page 20, line 34, after ‘and’, insert ‘the jury’.
No. 129, in page 20, line 37, leave out first ‘court’ and insert ‘jury’.
No. 28, in page 20, line 37, leave out ‘determines’ and insert ‘is satisfied beyond reasonable doubt’.

Tony McNulty: The amendment seeks to make it even clearer that a court in England and Wales, when considering whether an offence listed in schedule 2 is connected to terrorism, must do so only on the basis of open evidence presented by the prosecution and defence. That is the evidence that a court usually has before it for sentencing. The defendant will be able to challenge any evidence on which a terrorist determination is made, either during the trial or, if there is a guilty plea and the judge holds a Newton hearing where the defence and prosecution dispute facts of the case which would affect sentences, so as to decide the matter at that hearing.
It was always intended for that to be the case. There was never any suggestion in the Government’s proposal that a determination could be made on the basis of intelligence, or evidence withheld from the defence due to PII or other, lesser-status information, such as that contained in a pre-sentence report. However, we felt that we should make a slight amendment to the drafting so as to put the matter even more beyond doubt than it already was. That is the substance behind the amendment.
For completeness, it may be appropriate if I leave others to move their subsequent amendments, and I will reply to them all in due course.

John Bercow: Other hon. Members do not move amendments at this stage, but they can speak to them as they are part of the same group.

Dominic Grieve: I thank the Minister for his introduction and for his amendment, which was welcome. It did not cross my mind that it was intended for a judge to be asked to make his decisions without having any facts in front of him, but the amendment clarifies that point beyond any doubt.
These are probing amendments designed to look at the same issue, albeit in a slightly wider context. The Government said that the judge would make a determination. That determination may be made either in the course of the trial, because it would be the basis of the conviction, or it may be made on the basis of a guilty plea, in which case there may be the possibility of a Newton hearing. That raises two issues. The first is what would happen if, during the course of a hearing, the Crown’s case alleges that something is an aggravated offence because it is connected to terrorism. If that issue is in contention, are we to assume that, in certain circumstances, juries will be asked to return special verdicts indicating whether or not they consider it to be terrorist connected?
Secondly, as the Minister will be aware, currently, the judge on his own determines if there is to be a Newton hearing. No jury is empanelled to decide whether there is a terrorist connection; it follows very normally in a pattern of determinations made by judges sitting on their own. I have participated in many Newton hearings. The judge hears evidence and submissions such as the prosecution and defence wish to put forward and makes up his mind about the matter. Moreover, I recollect that he makes up his mind effectively on the balance of probabilities and not beyond reasonable doubt.
On the whole, the Newton system has worked perfectly well. Equally, I have participated in trials where a major issue of fact has been resolved by the judge asking a special question of the jury when it comes to return its verdict—“Is it on basis A or basis B?” Judges, on the whole, do not like doing it but if they are forced to do it, they will do it.
One of the issues that we must consider here is that the introduction of a terrorist element is making not some minor difference but a colossal difference to sentencing. One only has to look at the sentences now being imposed, very properly, on individuals who although they have not killed anybody, have nevertheless been engaged in conspiracies with a view to killing people—although often conspiracies in a very early stage—to see that they have ended up with discretionary life sentences and 40-year terms being prescribed. Therefore, particularly with the way that the Government are widening the scope of the aggravated offence, it is possible to envisage circumstances where somebody coming before the court on the sort of offence that might first appear to be very minor indeed—the sort of thing that might attract six months’ imprisonment—might go to prison for five, six or more years, once the terrorist connection is established.
The Committee has to consider how we reach the decision in such cases and whether the decision should be given to juries in the Newton hearing and not to the judge on his own. Alternatively, how will juries be asked to deal with these issues, if there is the possibility of them returning a verdict that might be “Yes, he is guilty of this but it has no terrorist connection” or “He is guilty and there is.”

Douglas Hogg: I am trying to identify my hon. and learned Friend’s position. Let us take a plea of guilty that is to be dealt with by the single judge—the jury not having been empanelled. Is my hon. and learned Friend suggesting that in such a case a jury should be empanelled, as it were, on a Newton hearing to determine whether or not the offence is terrorist related?

Dominic Grieve: These are probing amendments, but yes. If we were to have a jury on a Newton hearing, we would have to empanel the jury in rather the same way as one empanels a jury to decide if somebody is insane—in order to determine on the facts whether it was a terrorist-related matter. That is one issue. I was raising another issue, which is about the mechanism in a jury trial where an allegation is being made of a terrorist connection. How does one go about dealing with that in terms of the jury being able to indicate if it concludes, having heard all the evidence, that there is no terrorist connection?

David Heath: I am listening carefully to the hon. and learned Gentleman’s arguments, which, as he knows, are similar to the ones that we had hoped to deploy in this group. In the circumstances where he envisages a jury establishing whether there is a terrorism connection, what standard of proof does he believe would be appropriate? I notice that he has added his name to our amendment No. 27 but not to our amendment No. 28. Does that suggest that he is happy with a balance-of-probability test on the part of the jury in that instance?

Dominic Grieve: I am rather open-minded about it. This is a Committee stage and I have some doubts in my mind as to the best way to proceed. Being conservative with a small “c”, a strong argument commends itself to me—if the current system has worked well dealing with such issues of fact in the past, should we be getting too worried? There is a good argument for saying, “Let us leave the current situation as it is.” Judges have always been able to deal with the issue and ask the jury a supplementary question if a real issue arises in a trial about the facts on which the ultimate sentencing will take place. So far as a Newton hearing is concerned, where there is a guilty plea, the judiciary in my experience have managed fairly well to come to conclusions when the facts are placed in front of them. They usually listen very carefully to the evidence put before them.
That is one argument. The alternative argument is to say that that is all very well in the context of the sort of decisions that used to have to be taken. However, the anxiety is about the growing consequence of the aggravated offence, which would start to create penalties that bear little relation to what one would expect to be imposed if the offence was not aggravated. That is what I would ask the Committee to consider. I await the Minister’s response with interest—but before I hear from the Minister, I give way.

Douglas Hogg: I am sorry on the whole to be sounding a note of caution when I hear my hon. and learned Friend speaking on the matter. He will remember and keep well in mind the provisions of the Criminal Justice Act 2003, where we have tariffs for murder. It is for the judge to determine where within the tariff the appropriate sentence lies. However, I have never heard it suggested—I have certainly never seen it done—that the jury should determine the class of homicide as prescribed in the schedule to the Act. I would be very cautious about giving juries a role in sentencing, which is what my hon. and learned Friend is in reality about.

Dominic Grieve: I am cautious. If we were dealing only with homicide, I do not think that I would be particularly bothered. However, the issue is that we now have aggravated terrorist offences that can be almost anything. Using a credit card to carry out some fraudulent activity with a terrorist connection may attract a sentence much higher up the scale than one would normally expect from the sums involved. I thought that the issue ought to be brought before the Committee, although I share my right hon. and learned Friend’s caution. That is why my amendments are probing. I do not have a concluding viewpoint. I am interested to hear the Minister’s view and what degree of consultation has taken place. Based on what the Minister tells me, I am minded to go away and reflect on whether I want to do anything else about it.

Elfyn Llwyd: I am listening with great care to the debate and understand both sides of the argument, but I want to throw one thing in: the Homicide Act 1957. On a plea of diminished responsibility that is not accepted by the Crown, the decision then goes to the jury. That supports the hon. and learned Gentleman’s contention, I think. I also throw in the point that, for many years, lay magistrates have been very comfortable with their role in determining facts in Newton hearings in magistrates courts.

Dominic Grieve: The hon. Gentleman makes a good point. As I said, I cannot amplify my views further, because they have not crystallised. I make no apology for that. I am open to persuasion either way, but I would be interested to know the Government’s position and the views of any member of the Committee who might have them.

Tom Brake: I thank the Minister, for clarifying the purpose of the Government’s amendment, and the hon. and learned Member for Beaconsfield, for speaking to the grouped amendments. The first amendment in the string was our amendment, which I am pleased that the Conservatives put their name to, as did the hon. Member for Meirionnydd Nant Conwy. I thank the hon. and learned Gentleman for opening the debate and for being able to set out, perhaps slightly more convincingly than I might have been able to do, the strengths and merits of our amendments Nos. 27 and 28.
Clearly, we are talking about the need for greater safeguards, because the terrorist component of an offence is making that offence so much more aggravated. Hence the need for a jury and hence, possibly, the need for a criminal standard of proof. Again, I follow the lead of the hon. and learned Member for Beaconsfield in saying that these are probing amendments, so that we can hear what the Government have to say about this matter, given that we are talking about perhaps much more substantial and lengthy sentences, and so a need for greater safeguards, as well as a jury or a criminal standard of proof.
We would not seek to press the amendments but wish to listen to what the Minister has to say in response, before perhaps formulating further views later on.

Douglas Hogg: My hon. and learned Friend the Member for Beaconsfield invited members of the Committee to express a view; mind you, we could not stop them doing so. None the less, it was very gracious of him.
I am bound to say that I approach this issue with considerable caution. I myself have always taken the view that sentence was very much a matter for the trial judge. I have always resisted suggestions that the jury should be involved in the sentencing process. In reality, that is what the suggestion by my hon. and learned Friend would amount to.
There is logic in what my hon. and learned Friend says, but I can anticipate quite a lot of other circumstances where the same sort of case arises. Where, for example, there is a racially aggravated assault, is the sentence for that crime to be put to the jury by way of a special verdict? Alternatively, take the point that I adverted to in the intervention, where one is dealing with a homicide case. We all know that there is a range of starting points for the tariff: the starting point is 15 years but it can go to whole life in certain circumstances and it can fall to about 12 years in others. It depends on the balance of the mitigating and aggravating factors, which are specified in the schedule. I would be sorry to see juries being asked to state, by way of special verdict or otherwise, where within the schedule the person convicted of murder stood. Once we go down the road that my hon. and learned Friend outlined, we will get into precisely this sort of world. I am against it, I think.

David Heath: I am, of course, listening very carefully to what the right hon. and learned Gentleman has to say and I understand the point that he is making. However, does he accept that there is a bigger difference in consequence in this? There is a very much bigger difference between the consequence on what can be a relatively minor offence carrying a very small tariff and the consequence of a terrorist offence with a heavy sentence tariff, forfeiture orders and notification procedures consequent on that. That is what gives some of us cause for concern.

Douglas Hogg: Yes, I understand the logic in that, and the hon. Gentleman and my hon. and learned Friend the Member for Beaconsfield have a point. However, we must ask where the principle is. I take the fact that there is a distinction; within homicide, the range is from whole life to 12 years, which is a big gap. That is also a huge difference. At the end of it, however, I think that I want to leave sentence to judges; I do not think that I want to involve juries.
One of the reasons that I do not want to involve juries is that one would get oneself into the world of unintended consequences. For example, juries are reluctant to convict in certain classes of offence because of the consequences to the defendant that they can envisage. Furthermore, if juries found it difficult to answer the question in the negative—is this a terrorist offence?—they might very well acquit in circumstances where they should not acquit.
I think that this matter is best left to judges. If there is to be further consultation, I am sure that members of this Committee would wish to reflect further on it, but I am very cautious about it.

Elfyn Llwyd: We have had a very interesting debate. For once, I disagree with the right hon. and learned Member and my reason for that is, first, I do not believe that what is being proposed brings the jury into sentencing. Clearly, the jury should have no role in sentencing; we all agree on that, I am sure.
I mentioned the Homicide Act 1957 in passing. We entrust the jury, albeit with specialist medical evidence and so on, as well as requiring them to look at the circumstances of the offence, with deciding, “Is this a case of murder, or do we accept this person’s plea of manslaughter based on diminished responsibility?” That we do.
Let us say, for example, that the jury come back—I, and other people, have seen it in court—and say, “We accept the plea of diminished responsibility, therefore we find that he is guilty of manslaughter.” If we follow the argument of the right hon. and learned Member, the jury take part in sentencing, because what is open to the judge is severely limited, compared with what was open to the judge when the offence was murder.

Douglas Hogg: I wonder whether the hon. Gentleman is entirely right, because he will keep in mind that for manslaughter, which is what the verdict would be if there was diminished responsibility, there is a penalty that ranges from life to a non-custodial sentence. The sentence is at large; it is for the judge to impose any sentence within that bracket.

Elfyn Llwyd: I understand that point, but does not my point undermine the idea that in terrorist offences, juries might find it easier to go for the softer option and so on? I fully accept what the right hon. and learned Gentleman says: we need to keep juries away from sentencing. I have no doubt about that. But there is a huge difference between an offence involving terrorism and an offence presumably not involving terrorism, and on that basis alone, the jury should have a say in that determination. Then, of course, it will be entirely open to the judge to decide, if one can imagine, and I use the phrase advisedly, a minor terrorist offence: one on that side of the scale, as opposed to one at the very top. There is good sense in the amendment and it is worth having the debate, but I must confess that, as the right hon. and learned Gentleman said, we need to be cautious with it. It should not, however, be dismissed out of hand.

Tony McNulty: We are in danger of confusing what clause 29 is about with the previous debate about clause 27 and jurisdictional issues. Clause 29 relates directly to a specific set of serious offences and no others. We shall come on to discuss schedule 2, but the offences are outlined in it. In substance, clause 29 merely formalises the current situation. I shall pursue the example from the hon. Member for Meirionnydd Nant Conwy, whereby the jury says, “manslaughter”, rather than “homicide”, which is perfectly reasonable. I am no lawyer and I do not want to jump into a catfight between three significant lawyers, but it is perfectly wrong to say that the jury are influencing a sentence. They are not; they have determined the offence. As the right hon. and learned Member for Sleaford and North Hykeham says, it is then entirely up to the judge, having got a manslaughter result, to decide the mitigating and other circumstances and whether the sentence should be non-custodial or life—as manslaughter rather than as homicide. That is rightly and properly the purview of the judge, not of the jury. To pursue the analogy, no one in that case would think it right or proper for the judge then to say to the jury, “You’ve said manslaughter. Where do you think the sentence should lie in this whole range from non-custodial to life?” When, perfectly properly, the prosecution authorities say, as they have done, “This is a terrorist offence,” it will be perfectly in order for the judge to take it—once the outcome has been determined—as a mitigating circumstance prior to sentencing, as he would any other. That is all the provision will do.
To be perfectly fair, I think—again, I am no lawyer—that if we were to accept the amendment, we would drive Herbert Morrison’s proverbial “coach and ‘orses” all the way through the principle that it is for the judge to determine a sentence, not for the jury. Let us look at schedule 2. I do not think that the judge would give, in every circumstance, the impression of a huge, whopping, decade-related sentence because the offence happened to have “terrorist” connected to it. The minor offences are not in schedule 2. We have moved on from the jurisdiction; we are now on to those schedule 2 offences that are appropriate for enhanced sentencing. We must regard the matter in that context, and again, as a non-lawyer, I should say that, in those circumstances, to ask the jury to play a role would be perverse in our current system.
The hon. and learned Member for Beaconsfield asked a perfectly fair question about consultation. He will know that we have had five months’ consultation on this, including discussions with prosecutors and the judiciary, who did not think the measure was necessary at all—he is free to come back to that with a Mandy Rice-Davies comment and say, “Well, they would, wouldn’t they?” Some legal organisations did think it appropriate for the jury to make the decisions—principally, Liberty and Justice. He will know that there is a summation of views. Opinion was split.

Dominic Grieve: The Minister has fairly pointed out that the judiciary did not think that this section of the Bill was required. That point of view commends itself to me because the judiciary would simply say that the provision is just not necessary because it can take account of the facts in relation to aggravating circumstances without it having to be spelt out in statute. So why have the Government put the provision in the Bill?

Tony McNulty: Purely to formalise that which has prevailed thus far, and because it is right and appropriate to do so. First, doing so will formalise the range of offences for which it is appropriate; those offences are outlined in schedule 2. Secondly, as I have said, the provision will formalise the position that has prevailed in some terrorist cases up to now. It is perfectly proper for the judge to determine whether it is a terrorist offence or otherwise where the principal charge was clearly a non-terrorist offence. It is also perfectly proper for the judge to reflect that in the enhanced sentencing.

Dominic Grieve: To come back to the Minister’s point about these being serious offences, I agree that the vast majority are. However, I dare say it will come as a salutary shock to the average yob who has caused a disturbance on the aeroplane while flying back from Ayia Napa to the United Kingdom to find that the judge sentencing him must consider whether he has a terrorist connection.

Tony McNulty: I have never been to Ayia Napa, so I shall let that lie. I recently went to Cyprus for the first time, but happily I was nowhere near Ayia Napa. I stayed at a lovely little hotel called the Anassa—the surrounding countryside was miserable as sin, but the hotel was lovely. However, that is by the bye. It is clear that these are, in principle, serious offences and will be taken as serious in a case with a terrorist overlay to it. The hon. and learned Gentleman knows that entirely. I am minded to remind him—although I do not want to go there—that, among other things, noxious substances and noxious things are included. During our deliberations, he reminded me, or informed me rather, that Mosquitoes—not the nasty little bug, but the antisocial behaviour devices that emit UHF sounds to put off teenagers—are also a noxious thing. So far, we have two noxious things: pathogens and potentially Mosquitoes.
The formalisation of what has already prevailed is appropriate. The explanation of what schedule 2 offences should be—and we will come on to schedule 2—is equally appropriate. Notwithstanding our amendment, we have set out the appropriate way to go forward. Before enhancing sentences, the judge rather than the jury should properly consider what is essentially on one level, as I have suggested, a mitigating circumstance. I just do not think doing otherwise is reasonable.
I am told reliably that the point made about beyond reasonable doubt in amendment No. 28 is principally already the case—certainly in terms of including the aggravation in sections 145 and 146 of the Criminal Justice Act 2003 that covers race, religion, disability and sexual orientation aggravation. There is no provision in that Act to spell out that the standard is beyond reasonable doubt and similarly it is not necessary to spell it out in the Bill because it is already the case that the court will apply the criminal standard and there is no suggestion that it would do otherwise. In that context, clause 29—suitably amended by me—should stand and the other amendment should be withdrawn.

Amendment agreed to.

Dominic Grieve: I have decided not to move amendment No. 169.

Clause 29, as amended, ordered to stand part of the Bill.

Clauses 30 and 31 ordered to stand part of the Bill.

Schedule 2

Offences where terrorist connection to be considered

Amendment made: No. 137, in schedule 2, page 71, line 33, leave out paragraph (b).—[Mr. McNulty.]

Schedule 2, as amended, agreed to.

Clause 32

Forfeiture: terrorist property offences

Dominic Grieve: I beg to move amendment No. 170, in clause 32, page 22, line 1, leave out from ‘used’ to ‘for’ in line 2.

John Bercow: With this it will be convenient to discuss the following amendments: No. 130, in clause 32, page 22, line 5, leave out ‘or under their control’.
No. 171, in clause 32, page 22, line 8, leave out
‘or had reasonable cause to suspect’.
No. 131, in clause 32, page 22, line 9, leave out ‘or might’.
No. 172, in clause 32, page 22, line 21, leave out
‘or had reasonable cause to suspect’.
No. 132, in clause 32, page 22, line 22, leave out ‘or might’.

Dominic Grieve: The clause deals with the forfeiture of terrorist property. I wish to make it clear to the Minister that I have no objection in principle to the idea that terrorist property should be forfeited. However, we perceive that a problem arises about whether the wording of the clause is too wide. It states:
“Where a person is convicted of an offence under section 15(1) or (2) or 16, the court may order the forfeiture of any money or other property which, at the time of the offence, the person had in their possession or under their control and which—
(a) had been used for the purposes of terrorism, or
(b) they intended should be used, or had reasonable cause to suspect might be used, for those purposes.”
In what circumstances should I have a reasonable cause to suspect that money might be used for a terrorist purpose?
For example, a large number of organisations in this country, some of which are registered charities, raise money for the relief of destitution, poverty and misery in the middle east, particularly the occupied west bank. From time to time, there are reports in national newspapers that one or other of those organisations is not fulfilling its charitable purposes, and that it is possible that money given by donors in this country is ending up in the hands of those who are promoting violence, and that they are using it to fund that violence. Seeing the generic nature of the anxiety that had been expressed, it must at least be the case that, if confronted with an organisation that seems to be a registered charity in this country and that otherwise has bona fides, I might have to say to myself, “I cannot say that I don’t have cause to suspect that it might be used, even though I have no evidence that it will be used as such at all.” I put it to the Minister that that illustrates my point better than any more of my speech making would do. I am worried that we might be extending the net too far through our wording.

Douglas Hogg: Perhaps an even more serious problem can arise, although my hon. and learned Friend has identified a proper point. Let us consider circumstances in which, for example, the person is the owner of a garage. He is in possession of a car that is owned by a third party. The third party is entirely innocent, but the garage proprietor suspects that the car will be used in a terrorist offence. The property owned by the innocent third party is subject to forfeiture. If the Minister would be good enough to look at clause 34, he will see that, although there is a right for the innocent third party to make representations, there is no clear guidance as to the criteria that the court should observe when determining whether to make an order that will have a serious effect on the innocent third party.

Dominic Grieve: My right hon. and learned Friend makes an extremely important point that we might cover a little more closely when we reach clause 34. However, it is a point that the Minister should answer during our discussions.
As the Minister will appreciate, the purpose of the group of amendments is to amend the clause not, I hope, to negate its efficacity in forfeiting terrorist property.

Tony McNulty: The word is efficacy rather than efficacity.

Dominic Grieve: The right hon. Gentleman is probably right.

Tony McNulty: That means that I am.

Dominic Grieve: We must ensure that the net is not cast too widely.

Douglas Hogg: May I reinforce the point that I have just made by way of an intervention because it does raise rather an important issue. We could often have a situation in which the convicted person is essentially a bailee, if I can use that technical word. He is a custodian. Let us suppose that the convicted person is in the business of repairing a car. That is the best possible example because cars can readily be used in terrorist attacks, either as the vehicle for the bomb, for transport or whatever. He has the property of another in his possession and under his control. We could think of almost any property that would fall into that category.
On that person’s conviction, the property belonging to the third party is subject to forfeiture. I acknowledge at once that a provision under clause 34—proposed new section 23B—enables a person, other than the convicted person who claims to be the owner or otherwise interested, to make representations, but nothing in that proposed new section sets out the rights of that innocent third party, if I may characterise the person as such. All he can do is to make representations. The provision does not explain the person’s rights if the court was satisfied that he was wholly innocent—“What is the standard of proof”, I say in parenthesis. What are his rights? They seem to be at large, and I find it difficult to believe that that can be right.
To be truthful, I have not had time to table amendments to clause 34. I make no complaint about that. It is my responsibility to do so. However, we must address such an issue because innocent third parties should not have their property forfeited because the bailee is guilty of an offence. I hope that the right hon. Gentleman will reflect on the provision because, as I suggest to my hon. and learned Friend, we shall need to return to it on Report as it concerns a serious issue of third party rights.

Elfyn Llwyd: I am following on precisely from that point. I am sure that the Minister will help us in a minute. What has been foreseen under clause 34 is a similar or more robust procedure that applied under the Police (Property) Act 1997—that both sides would be heard properly and a decision arrived at. I agree that the procedure must be robust, open and easily accessible to an innocent party who may lay claim to the property.
The hon. and learned Member for Beaconsfield said that we must be careful not to cast the net too widely. No one in the Committee or elsewhere would say that it is wrong in principle to forfeit money or property that might have been involved in terrorist activity. I can advise the Committee of a case—I shall not name it because it is current and was decided in the last few days—of someone who has been convicted of theft of property worth less than £4,000. All the property was recovered, and he was sent down for a matter of weeks. He came out of prison to face one of these procedures. He had £7,000 in the bank and could prove precisely where the money had come from, but the judge was helpless and had to take the money from the offender. The net is already too wide, and we should apply care. I have no regard for any terrorist, and we must ensure that anything that is used in terrorism is properly taken away. There is no doubt about that, but we must be careful in this part of the Bill.

David Davies: This will be a short speech, because it is completely unprepared. I strongly disagree with the last point, because it is not just about money that might be used for terrorism. It is about removing from people who have been convicted of terrorist acts the means to perpetrate further acts of terrorism, regardless of whether the money used for doing so was gained lawfully or not. Frankly, I have no sympathy whatever for terrorists, burglars or anyone else who is convicted of an offence. Once that conviction has been made, the gloves should come off.

Douglas Hogg: The problem is when that person is in possession of the property of third parties in particular. For example, in matrimonial situations a terrorist could share property with a wholly innocent wife. I would find it difficult and I hope that my hon. Friend would find it difficult to say that the property of a wholly innocent wife should automatically be taken away.

David Davies: I would indeed, and I was perhaps responding more to the comments made by the hon. Member for Meirionnydd Nant Conwy than to those of my right hon. and learned Friend. If it can be proved that money or goods belong to someone convicted of terrorist offences, regardless of whether they were used to carry out the offences or were simply there, the authorities should have every reason to try to remove them from the convicted person.

Tony McNulty: I was quite surprised by what the hon. Member for Monmouth said—not the substance, but the notion that at some other times he prepares his speeches.
I defend entirely the hon. and learned Member for Beaconsfield who sent me a note stating rightly that efficacitÃ(c) is French and that he had slipped into French. We know how erudite he is in the English language, and I am sure that he is just as erudite in French, but it ain’t an English word, and I am happy to upbraid him for passing off efficacitÃ(c) as English when it is not.

David Davies: On a point of order, Mr. Bercow. Is it not the case that medieval French is still allowed in the House, although Welsh is not, and that my hon. and learned Friend was within his rights?

John Bercow: My response to that is that I understand that French is allowed for the purpose of Royal Assent, but for that purpose alone. I am grateful to the hon. Member for Monmouth for his point of order, which I am sure was illuminating for the Committee.

Tony McNulty: Without prolonging the point, I am pretty sure that efficacitÃ(c) is not medieval French, or Norman French.

Elfyn Llwyd: Does the Minister share my concern that the hon. Member for Monmouth said that he recognised that some people might be innocent?

Tony McNulty: In his defence, I am sure that it was a minor slip.
I freely accept that the thrust of the amendments is not to wreck or undermine what we seek to do—they are perfectly valid. Strangely, however, the hon. Member for Monmouth had half a point, because the mens rea for the measures is “had reasonable cause to suspect”. Notwithstanding the hon. Gentleman’s point about third parties and the ownership of property, or the points about the European convention on human rights—about article 8, on the right to respect for private and family life, and article 1 of the first protocol, about the right to peaceful enjoyment of one’s possessions—there is, incumbent on every individual, a notion that they are responsible for their actions.
The principle applies even in the examples that the hon. and learned Member for Beaconsfield quoted, as there might be a reasonable suspicion that some of the bona fide charities working in the west bank, or anywhere else, have clear terrorist intent. Indeed, Members present could name such organisations. If one makes a donation to such an organisation—if one’s assets are aligned with them or are utilised by them in any way—and one does not fulfil one’s responsibility to put oneself in a position in which that is not the case, it is appropriate that the forfeiture regime should apply. It has to be applied carefully and there must be all sorts of safeguards, but the Bill provides greater safeguards than are provided in the 2000 Act, not least new section 23B, to which I think the right hon. and learned Member for Sleaford and North Hykeham referred. New section 23B(2) provides that the court must have regard to the “value of the property” and to the
“financial and other effects on the convicted person of making the order”.
I reiterate that we start from the premise that no one thinks that what the measure does is other than a good thing. The concern is about whether it has been drawn too wide, but there are appropriate safeguards. The amendments would lessen the import and strength of the measures, which is why I shall ultimately ask the Committee to resist them if they are not withdrawn.

Douglas Hogg: Let us take an entirely fictional person called Mr. McNulty, who has a car. He gives his car to a garage to be repaired, but, unfortunately, the owner of the garage happens to be a terrorist. The proprietor of the garage uses the car for terrorism purposes, and is subsequently convicted. May I ask where in the Bill, or in any other legislation, the interests of the wholly fictional Mr. McNulty are properly protected, because they are not protected by clause 34 or new section 23B?

Tony McNulty: I contend that they are protected by the whole limb of “reasonable cause to suspect”. If the fictional Mr. McNulty had no reason whatever to suspect the person with whom he left his car at the garage, who was probably going to rip him off, he would be entirely free from the provisions.

Douglas Hogg: I have a feeling that the right hon. Gentleman is misreading the Bill. I understand that the phrase “reasonable cause to suspect” would apply to the garage proprietor, not to the fictional Mr. McNulty, who gives his car in good faith to the garage proprietor, who happens to be a terrorist. Where in the Bill are Mr. McNulty’s interests protected?

Tony McNulty: There is no cause to protect the fictional Mr. McNulty in the Bill because he is not the focus. In the example, the right hon. and learned Gentleman was querying the rights of the third party, the fictional Mr. McNulty, over his car. These clauses would have no impact on Mr. McNulty. To the extent that he needs to be covered, that will be done elsewhere, not just by the ECHR, but under other legislation.

Dominic Grieve: My right hon. and learned Friend the Member for Sleaford and North Hykeham has a perfectly valid point. The architecture, as set out in proposed new section 23B on forfeiture, clearly envisages the forfeiture of property in the possession or control of the individual at the time of conviction. The individual is the person who has committed the offence. That does not provide for an individual to make representations to the court that the property that has been used in the course of terrorism is his and has been used in circumstances about which he had no idea or reasonable call to suspect were happening. It may be that the Minister can provide reassurance that a safeguard exists elsewhere in the Bill, in statute or in court rules. I think that my right hon. and learned Friend makes a perfectly good point.

Tony McNulty: I do not agree, not least because section 6 of the Human Rights Act 1998 says that everything we do should be ECHR compatible. Someone cannot forfeit wholly innocent property and remain within the context of the ECHR. If there are any disputes, the provisions in the Bill offer greater safeguards than in the original Bill. As was indicated, the Police (Property) Act 1997 also covers this point.

Dominic Grieve: It is not an adequate safeguard to say that a person who finds that their property has been confiscated by the court because it happens to have been under the control of a terrorist on the date of conviction should have to rely on article 6 of the ECHR to assert their right to recover it. They might well be able to do so, but in legislation of this kind, I would ordinarily expect the Government to make provision for that individual to make representations. I was heavily involved, sitting in this room at one stage, with scrutinising the Proceeds of Crime Bill, which made exactly that sort of provision. I wonder if this is not simply an omission that can be corrected by the Government before Report stage.

Tony McNulty: No, I did not say article 6, but section 6 of the Human Rights Act 1998, which says that everything that we do must be ECHR compliant and therefore compliant with the key provisions of article 1 and the right to property in article 8. I alluded to that as the background architecture. As the right hon. and learned Member for Sleaford and North Hykeham has already mentioned, clause 34, which will insert section 23B in the Terrorism Act 2000, says very clearly:
“Before making an order under section 23 or 23A, a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner or otherwise interested in anything which can be forfeited under that section.”
That is the belt and braces and the right hon. and learned Gentleman has referred to it already. That is entirely proper. As I have said, the way we are amending the architecture of the 2000 Act and all that it says on forfeiture will make the safeguards stronger. The points that have been made are covered in the Bill.

Douglas Hogg: I am sorry to press this matter, but I think that it is important. The Under-Secretary of State for the Home Department, the hon. Member for Gedling, may remember that when we were scrutinising a different Bill last year, I raised the confiscation powers in the Proceeds of Crime Act 2002 and we debated this subject. I think that the Minister is uncharacteristically misunderstanding the case.

Tony McNulty: The right hon. and learned Gentleman’s fictional Mr. McNulty is covered by the amendments to the 2000 Act contained in clause 34. Any other individual who, for whatever reason, has their property captured under a forfeiture order, but who has due rights and legal ownership and can justify that, can get due process from the courts. Your Mr. McNulty can waddle up to the court—if he is anything like me—present himself and the documents that say that it is his car that has been captured by the garage owner who happens to be a terrorist and, under the amendments in new section 23B to the Terrorism Act 2000, can also get due process from the courts.

Douglas Hogg: Although I would like to think that the Minister is right in his interpretation of statutory language, I fear that he is not. Let us go back to the starting point. We are dealing with a fictional Mr. McNulty who gives his car to a garage. The garage proprietor uses or intends to use the car for terrorist purposes and is convicted. At that point, Mr. McNulty’s car is forfeited. What are Mr. McNulty’s rights? They are set out in clause 34, particularly in new section 23B. Mr. McNulty has a right to go to the court that made the confiscation order, claiming to be the owner or to be otherwise interested in anything that was forfeited. He has a right to go to the court, but what is the court to do? Subsection (2) of new section 23B states:
“In considering whether to make an order under section 23 or 23A in respect of any property, a court shall have regard to”—
only two criteria—
“the value of the property”,
which is Mr. McNulty’s car, and
“the likely financial and other effects on the convicted person”,
who is the garage proprietor,
“of the making of the order”,
taken together with any other order that the court contemplates making. There is absolutely nothing in the clause that gives the court a duty to consider the interests of the fictional Mr. McNulty—nothing whatever. That is the objection.

Tony McNulty: That is because the duty is afforded under new section 23B(1). New section 23B(2) relates to the remaining property where it has already been determined that it belongs to the defendant and is about to be forfeited. It has nothing to do with claims by third-party owners who are only interested in whether their property is being swept up in the forfeiture order. I think that that is very clear.

John Bercow: Order. I was not entirely sure whether the right hon. and learned Member for Sleaford and North Hykeham had finished his speech or was taking an intervention.

Douglas Hogg: I was giving way. Even if the Minister is correct in his interpretation of subsection (2), he is not right in his interpretation of subsection (1). All that subsection (1) does is enable Mr. McNulty to claim to be the owner. It says nothing about the burden of proof or what the court has to determine before deciding whether or not the car should be forfeited. I am saying that there is insufficient protection built into that provision for the Mr. McNultys of the world. If the Minister thinks about the Proceeds of Crime Act 2002 or the point made by the hon. Member for Meirionnydd Nant Conwy about the Police (Property) Act 1997, he will know that there are criteria in other legislation that touch precisely on that matter.
I am perfectly willing to accept that the Minister, at this stage, is not in a position to say, “All right, the right hon. and learned Member is of course right”, but he is in a position to say that he will think seriously about the matter. I will be entirely reassured, because he is a perfectly sensible chap, if he will say that he will give the matter serious thought before Report, because I can tell him that we will.

Tony McNulty: In that spirit, I shall happily look at it, but I am pretty clear that I am right, without pre-empting my dispassionate reflection on how the two clauses interact.

Dominic Grieve: I simply canvas this as a possibility: it is quite clear from the amendments that will be made to section 23 of the Terrorism Act 2000 that it is envisaged that forfeiture will extend to property that is more than just owned by an individual. That is why clause 34 states that at the time of the offence the property was
“in their possession or under their control”.
I also agree with the Minster that in clause 34, there is a clear provision for a person to make representations to the court that they are in fact the owner or otherwise have an interest in anything that is going to be forfeited. What is not expressly spelled out is how the court is to reconcile those two matters. If, for example, a person can establish ownership, but it is quite clear that the articles were not under the possession and control of the person at the time that they were used for terrorism, are they to be confiscated? What is the situation in terms of forfeiture where it is quite clear that the property does not belong to the individual, but nobody has ever come forward to say it is theirs? Is such property automatically confiscated? If the owner hears about it six months later, is it too late to come along and reclaim it? Or does it remain their property?
I hope that the Minister will forgive me. I suspect that these are matters which can be cleared up quite easily, but I think there is, in the drafting of these two new sections, a degree of incompatibility or, at least, a lack of clarity which it might be useful to resolve.

Tony McNulty: If, after the reflection that I have promised, that is the case, we will have a look. Many of these provisions, however, simply replicate, in the same language, the core of what has already been in force since 2000 and which has not, in its language at least, been problematic. The hon. and learned Gentleman will know that issues around asset seizures have been reported in the press in very recent times, but they are more to do with asset freezing than with seizures.
I am very happy, in the spirit that the hon. and learned Gentleman offered his point, to take it away and look at the interaction between the amendments to the 2000 Act. If there are concerns that have been around since 2000 that we have not alighted upon, then I will have a look. I am being very, very clear, as the hon. and learned Gentleman said at the start, that this is not about trying to block, impinge or do anything other than have the most efficacious set of principles to do what we all, collectively, want to do, which is to make sure that the assets of individuals involved in terrorism are duly forfeited.

Dominic Grieve: I am grateful to the Minister for his explanations. I hope that he will take what has been said in good part. It may well be, as so often happens when we consider Bills, that those tabling amendments have got it wrong. I do, however, think there is an issue here, and the fact that the provisions date from 2000 does not necessarily mean that the issue was resolved at that time. It would be very useful if the Minister could provide some clarification before Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Campbell.]

Adjourned accordingly at thirteen minutes past Four o’clock until Tuesday 13 May at half-past Ten o’clock.